Thursday, June 14, 2007

A federal judge said Thursday he will not delay a 2 1/2-year prison sentence for I. Lewis "Scooter" Libby in the CIA leak case, a ruling that could send the former White House aide to prison within weeks.
U.S. District Judge Reggie B. Walton's decision will send Libby's attorneys rushing to an appeals court to block the sentence and could force President Bush to consider calls from Libby's supporters to pardon the former aide.

Christopher Hitchens wades in as only Hitchens can, attacking the unpleasant glee that has accompanied the jailing of Paris Hilton and then throws in a few choice words for the judge in the Libby case. He notes "an even more acid piece of creepy populism, in the form of an order from Judge "Reggie" Walton, who poured his witless sarcasm on those who had filed a brief in support of Lewis "Scooter" Libby.

Applying that statute, Judge Walton was required to deny bail pending appeal unless he thought Scooter's appeal was likely to succeed. But, of course, if he thought there had been an error grievous enough to warrant reversal, he wouldn't have sentenced Scooter in the first place — he'd have set aside the jury verdict on his own and either acquitted him or ordered a new trial.

Andy, I'm happy to yield to your superior knowledge of the relevant statutes, but my problem with Judge Reggie is one of tone as much as anything else. Putting aside his complaints about "angry, harassing, mean-spirited " letters, which make him sound like a whiney twerp, and the cheesy populist pandering - "If that's going to be how we have to operate, our system is going to be in serious trouble with the average Joe on the street who thinks the system is unfair already" - let's consider his thoughtful response to a six-page brief from a dozen eminent constitutional jurists of diverse political dispositions (from Alan Dershowitz to Robert Bork).

"The submission was not something I would expect from a first-year law student," sneered Judge Reggie, sweeping it aside. No magistrate with a care for the reputation of the court would be so crude. Perhaps he's auditioning for Court TV or the Paris Hilton appeal, but, if he's all hemmed in by controlling statutes anyway, is it too much to ask a judge to be a bit more judicious?

Of course, federal trial judges do not throw every convicted defendant in prison pending appeal. Why is that? Although they obviously believe they ruled properly on matters of law, they are willing to let other judges — judges who will hear the appeal anyway — review the challenged aspects of the case first, especially where you have a defendant who is neither dangerous nor a flight risk. Andy suggests Walton did not have that option. Clearly he did. The process isn't as clear-cut as suggested.
I believe the appointments-clause challenge is not frivolous, regardless of the ultimate outcome. Even Walton needed 31 pages to refute it. And his reliance on Morrison v. Olson seems misplaced for reasons I will argue in an amicus brief Landmark will likely be filing.

There are legitimate reasons to question Walton's judgment, in my view, including even his gratuitous comments about the law professors who had the audacity to file a brief in support of Libby. I have done my fair share of appellate work, and Walton's cheap shots would be worthy of at least a footnote in any appellate brief that I filed.

I’m with Mark Steyn on the deeply annoying superciliousness of Judge “Reggie” Walton, but, layman in all matters of the law that I most certainly am, I’m quite willing to defer to Andy on His Honor’s legal obligation to tell Libby to go to prison the moment the warden finds him a cell.

But there’s a big part of this I still don’t get: Judge Walton called the evidence against Libby “overwhelming.” This just doesn’t fit. Not with the courtoom(sic) reporting in the Times and here on NRO, where Byron York kept us all up to date. Any fair-minded person, I figured, would have to grant that, even if on balance it weighed against Libby, the evidence wasn’t “overwhelming” but mighty darned confusing—Libby’s memory against that of Tim Russert and others, as traced through pages and pages of testimony, about who said what during telephone calls that took place months and months ago.

“Overwhelming?” Either Judge Walton is a thorough stinker of a jurist or yours truly is missing something.